Climate litigation becoming ‘a modern trend’

The Senior Women for Climate Protection Switzerland (KlimaSeniorinnen) argued that in neglecting this responsibility, the government had increased the negative health impacts and likely death of vulnerable older women exposed to heatwaves and extreme weather events.

Court President Siofra O’Leary said the Swiss government had not complied with its own targets for cutting greenhouse gas emissions, nor set a national carbon budget, thus impacting future generations through failure to take reasonable measures. The Swiss case signals a potential turn in the trend for climate change lawsuits internationally, in which citizens are banding together to launch cases against their national governments.

In Australia, Torres Strait Islanders brought a class action against the Australian government for failing in its duty of care to protect their culture and environment from climate damage, including steps to reduce carbon emissions and failing to provide infrastructure that can withstand changing climate conditions. The trial of Pabai & Anor v Commonwealth of Australia began in the Federal Court in June last year and is expected to carry on through May this year.

The state of play in Australian enviromental laws

Australia introduced what remains the nation’s primary Commonwealth environmental legislation 25 years ago, the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The EPBC Act legislates how land, wildlife, heritage sites, nuclear actions, and threatened or migratory species are protected and managed. Under the Act, applications must be assessed and approved before projects can be undertaken.

Every 10 years, an independent review of the EPBC is undertaken in accordance with section 522A to determine what reforms are recommended. Professor Graeme Samuel AC led the 2020 review, which made 38 recommendations to significantly change the Act, which has been deemed complex, unwieldly and ineffective over decades of independent reviews and inquiries.

Professor Samuel’s report stated: “The EPBC Act is outdated and requires fundamental reform. It does not enable the Commonwealth to effectively fulfill its environmental management responsibilities to protect nationally important matters. The Act, and the way it is implemented, results in piecemeal decisions, which rarely work in concert with the environmental management responsibilities of the States and Territories.”

Subsequently, the Federal Minister for the Environment and Water, Tanya Plibersek, proposed the Nature Positive Plan (NPP) in December 2022, including a package of four bills that are not expected to reach the Senate until late 2024. Dr Emily Gibson wrote a comprehensive report on how effectively the NPP addresses the Samuel Review, which is available on the Parliament of Australia site.

On 16th April, the Department of Climate Change, Energy, the Environment and Water announced the Australian government would be progressing to the next stage of introducing Nature Positive Plan law reforms, including the establishment of the “first national independent environment protection agency”, Environment Protection Australia and Environment Information Australia.

For insight into the Nature Positive Plan and the efficacy of the EPBC, LSJ spoke to Peter Burnett, an Honorary Associate Professor at the ANU College of Law researching environmental policy and its translation into law.

Burnett says, “Despite the various governments, policies and laws, the environment continues to decline. That was in evidence most recently in the Australia 2021 State of the Environment report. The concern is that the laws to date have not been successful in halting that decline. The EPBC Act is really the flagship of Australia’s environmental protection laws, in addition to multiple laws at state and territory and Federal, State and Territory levels. The EPBC has a provision that requires a review every 10 years. The Hawke review in 2009 didn’t produce any significant change because of the politics of the day, then the Samuel Review came along in 2020, and the Morrison government did not respond in a substantive way to those recommendations.”

As a member of the Biodiversity Council, Burnett was present for stakeholder discussions relating to the Nature Positive Plan. It was evident throughout that there was great complexity in addressing the concerns of environment advocates, industry and state governments with differing policies to the federal government.

“The EPA and EIA won’t address most of the efficiency-related issues, such as how long it takes to get a decision, and many projects require a state-based and federal approval that creates duplication,” he says.

“Partly, making the process more efficient requires putting resources into the system to improve how fast decision are made, but it’s also about accrediting a state-based decision maker to make a single, ultimate decision, which requires trust between governments and an alignment of policies.”

The ‘single touch approvals’ would be based upon a set of overriding standards that cannot be interpreted according to ministerial discretion. As recommended by the Samuel Review,  the National Environmental Standards would be independently overseen by the Environmental Assurance Commissioner (EAC), ensuring the accreditation system and application of the Standards in all decisions. Neither the Standards, nor the EAC role are part of the Nature Positive Plan.

“There was no goal with the EPBC, and there was almost complete ministerial discretion so developers would find it entirely unpredictable as to what the requirements were to get approval. The Nature Positive laws are meant to provide the goal, the requirements, and some predictability around whether standards can be met. That’s the theory, but everyone is arguing over the detail,” Burnett says.

“[The Minister] argues she’s taken a decision not to rush and to take her time to do it properly. Environmental stakeholders’ concern is that the process has no endpoint. Industry stakeholders – the resource sector and the WA government notably – are concerned about potential burdens placed on industry and they want proper, timely consultation.”

This dissonance between what the various stakeholders want means the EPA and EIA may or may not be passed once they go through Parliament in May, and Burnett says it is dependent on the willingness of the Greens and the crossbench to approve these measures separately to the complete package of legislation originally proposed.

“The Greens may well argue that without climate change as part of policy reforms they won’t pass them, since the EPA and EIA are really institutional reform,” adds Burnett.

Against the backdrop of the EPBC not addressing climate change, Burnett says, “There have been domestic cases where Australian citizens have tried to get courts to make orders related to climate change. The federal government position is that they’ll deal with climate change through laws other than the EPBC.”

Burnett says, “There is a growing trend towards climate change challenges, and the most successful have been in Europe, including the recent Swiss case. There’s also the 2015 Urgenda Foundation case in which the Dutch courts ruled in favour of citizens, in a similar way to the Swiss case. Australia doesn’t have an equivalent to the European court of human rights, but cases have gone to the UN Human Rights Committee.”

Climate trigger not part of the proposed new legislation

“People have argued over the years that there should be an additional climate trigger – climate change – alongside heritage and endangered species,” Burnett tells LSJ.

The government is adamant they’re not going to broaden the EPBC Act to include climate change as a trigger, but the Greens are drawing a line in the sand, insisting climate provisions are part of the new laws.

To date, the Greens have failed to achieve their desired amendment to the EPBC via the Climate Trigger Bill Environment Protection and Biodiversity Conservation Amendment (Climate Trigger) Bill 2022. This trigger would require the environment minister to take the climate impact of a major development into considering during the assessment process under federal law.

As the future of the proposed Nature Positive laws remain uncertain, Burnett says, “Certainly, generally reforms are better than stagnation but are the Nature Positive laws worthwhile without provisions for climate change? Until compromise is on the table, and debate has been had, it’s impossible to say whether we should go ahead with the proposal [for the EPA and EIA] or not. Major change is necessary if we’re to stop decline, and we need to adopt National Environmental Standards as proposed by the Samuel Review as a priority.”

The Samuel Review labelled the EPBC Act “duplicative, inefficient and costly for the environment, business and the community” owing to conflict between Commonwealth, State and Territory laws.

Additionally, in 2020 the report claimed “the community does not trust the EPBC Act to deliver effective protection of the environment and industry view it as cumbersome, duplicative and slow.

“Reforms should focus on improving transparency of decision-making, including new advisory committees to build confidence decision-makers have access to the best available information. Current legal standing arrangements should be retained, and legal challenges should be limited to matters of outcome, including through limited merits review,” the Review found.

Political survival versus prevention of climate change catastrophe

Plibersek faces a dilemma, in which political kowtowing compromises environmental protection. In the second week of April, she told media, “When I first announced the Nature Positive Plan, I said it would take a bit of co-operation, compromise and common sense to deliver. That’s exactly how we’re approaching the rollout.”

Her comments followed criticism from West Australian Labor Premier Roger Cook that the new statutory body, the EPA, would add a layer of “green tape” on the industries so fundamental to West Australian coffers. Since Labor is at risk of being reduced to a minority government if it cannot retain the seats it currently holds in West Australia, the delays to overhauling the EPBC Act can only be seen as a fight for political survival at the expense of long-delayed environmental law reform.

The annual global average temperature is about 1.2° Celsius hotter than pre-industrial levels. According to the latest Intergovernmental Panel on Climate Change (IPCC) report on Impacts, Adaptation and Vulnerability, the world could experience temperatures of 1.5˚C hotter as soon as 2040.  Even if the pledges from governments around the world to decrease emissions by 2030 were met, there would likely still be a 2.7˚C increase by the end of the century.

The Paris Agreement in 2015 defined 1.5˚C as the crucial temperature threshold, resulting in irreversible impacts upon the global ecosystems that could result in both mass migration and the death of millions of people.

The 2.7˚C increase, according to scientists, would result in “unliveable heat for parts of the year across areas of the tropics and subtropics. Biodiversity would be enormously depleted, food security would drop, and extreme weather would exceed most urban infrastructure’s capacity to cope.”